Prisoners in a pandemic
COVID-19 reveals structural and systemic inequalities in Sri Lanka’s prison system.
On 21 March 2020, a riot took place in Anuradhapura Remand Prison in the North Central Province of Sri Lanka. While some reports said the riot was due to the suspected presence of a number of prisoners with COVID-19 symptoms, others stated it was due to the suspension of family visits. This led to prisoner agitation, violence, and ultimately, the death of two prisoners, with six more injured. The incident illustrates systemic and structural issues which have remained unaddressed for decades.
Disasters and crises such as pandemics highlight existing and deeply embedded structural and systemic inequalities. They also make evident our failure to address these shortcomings, which disproportionately affect those already experiencing discrimination. As states around the world struggle to cope with the impact of the COVID-19 pandemic and its adverse impact on socio-economic life, certain vulnerable groups continue to be at risk of being ignored when preventive and protective measures to counter the spread of the virus are formulated. Prisoners and detainees constitute one such group.
One common factor that binds prisoners and other groups likely to bear the brunt of the pandemic is that these groups did not figure in discussions on public policy during 'normal' times. The rights of prisoners do not garner much public interest globally, by virtue of the fact they have committed, or have been suspected, of committing crimes. As a result, they are viewed as expendable or unimportant.
In Sri Lanka, the potential impact of the pandemic should be viewed within the context of the state of prisons. This is applicable to other countries as well, including India, which has also experienced prison riots as a result of anxiety and fear around COVID-19. Such riots often involved rumours about prisoners being tested positive for COVID-19, or a general feeling that measures to ensure the safety of prisoners are inadequate.
Like most countries in the region, the Sri Lankan penal system is long overdue for reform. Most prisons occupy crumbling and dilapidated buildings, which are sometimes more than a century old and lack basic amenities, such as adequate sanitation facilities, uninterrupted access to water, and personal hygiene products, such as soap. Access to medical care is also limited, due to both the poor standards of prison healthcare facilities and structural impediments, such as an absence of officers and vehicles for transportation, which prevents the speedy transfer of ill prisoners to the general hospital for treatment.
One of the key concerns in the Sri Lankan penal system is overcrowding – according to publicly available statistics from the Department of Prisons, the general prison population increased from 20,661 in 2004 to 26,403 by 2020. In 2009 only 11,707 prisoners had authorised accommodation but the daily average prison population was 27,823 (ie, overcrowding was approximately 137.7 percent). In 2018, with 20,384 prisoners, overcrowding had reduced to 73.3 percent. It can be argued, in part, that the large number of pre-trial detainees (56 percent of the total prison population as of 2018) are a contributing factor to overcrowding. But overcrowding is not just a result of infrastructure and human-resource shortcomings, it is also related to criminal-justice processes.
A large proportion of these persons, for example, are on remand due to issues related to bail, such as not being granted bail for bailable, even minor and non-violent offences, or not being able to meet bail conditions. These were identified by the Taskforce on Judicial and Legal Causes for Prison Overcrowding and Prison Reform, established by the Ministry of Justice, as one of the causes of overcrowding. There are also a considerable number of persons in prison for the non-payment of fines, some for as small a fine as Rs. 2000. For instance, from 2012 to 2018, the number of persons imprisoned for the non-payment of fines ranged from 12,045 in 2012 to 16,111 in 2018, which is 42.4 percent and 64.8 percent respectively of the total number of persons admitted to prison during those years. Therefore, one of the key ways to protect the prison population from COVID-19 is to reduce overcrowding, which will permit physical distancing and the quarantine of prisoners, if necessary.
Like in other countries where the pandemic has led to prisons being partially locked down with prisoners being denied family visits, in Sri Lanka, too, on 17 March 2020, it was reported that all prison visits were suspended until further notice. Although this was the correct decision to protect the prison population from COVID-19, it had some unintended adverse consequences. For example, in-person visits are often the only means through which prisoners are able to see family, friends and lawyers. During stressful times, the lack of contact with family members can exacerbate anxiety and fear, and may potentially lead to prison unrest and even violence, as illustrated by the incident at the Anuradhapura prison.
Suspending prison visits also prevents remandees from receiving food from families, which many obtain, as the food provided by prisons can be inedible at times. It also prevents remandees from receiving provisions, including personal-hygiene items like soap, a shortage of which can exacerbate the spread of the virus. When prisoners are unable to obtain personal items (such as soap, toothpaste and sanitary napkins) that are not normally provided by the prison via legitimate means, ie, visits by family and friends, it can create a black market for these goods in prison.
As not all prisoners have access to news (both TV and newspapers), the lack of information and transparency on the part of the authorities often leads to rumours, which in turn increases fear and panic. Only one prison in Sri Lanka, Welikada Closed Prison, provides monitored phone facilities to prisoners, meaning that many prisoners in the country are also cut off from their families, lawyers and the outside world. During times of crisis, the public is particularly prone to panic if access to accurate information is limited; without access to external information at all, the plight of prisoners is far worse. In this context, frightened people may resort to irrational and unsafe ways to protect themselves, leading to violence.
Fear and panic among prisoners also makes maintaining order challenging, especially when prisons are already understaffed and prison officers are overworked. According to publicly available statistics of the Department of Prisons, as of 31 December 2018, only 3774 guards were employed despite the total number of prison guards in the cadre being 5041. Although the prisoner population has increased, there hasn't been a commensurate increase in prison staff, particularly prison guards, with even the total number of allocated staff not being recruited. The absence of officers not only diminishes their ability to maintain order in prison and respond to emergencies, such as unrest and violence, but it also prevents prisoners from being taken to hospitals for medical care in the event they fall ill, as several officers are required to escort the ill and stand guard.
If prisoners are infected en masse, the rather basic prison healthcare system will not be equipped to respond, because severely affected persons require ventilators and emergency care. If the public healthcare system is overwhelmed prisoners will likely be low on the priority list to receive treatment. Hence, it is imperative to prevent exposure, because if prisoners or prison guards are exposed, due to the lack of testing equipment it would not be possible to do mass testing. Instead, a large number would have to be quarantined. Quarantining prison officers would place greater pressure on the severely understaffed Department of Prisons and make the tasks of maintaining order in prison and responding effectively to the COVID-19 outbreak much harder. Quarantining prisoners would also be challenging due to the lack of space.
The Department of Prisons should formulate a protocol in consultation with the Ministry of Health on measures to be followed to prevent infection in prisons as well as on reporting and handling persons with symptoms. The World Health Organization Interim Guidance on preparedness, prevention and control of COVID-19 in prisons and other places of detention, issued on 15 March 2020, should form the template for the protocol. A task force should be established in each prison to oversee the implementation of these measures. There should be better facilities provided for prisoners; for instance, since prisoners won't be transported to hospital for regular clinics, their medication should be sent to the prison itself, and goods related to personal hygiene should be provided by the prisons. Public Health Inspectors (PHI) should visit prisons at least once a week and the reports and recommendations of the PHI should be made public. And crucially, information on prevention strategies, any exposure to COVID-19 and steps taken thereafter should be provided to prisoners and prison officers in order to prevent rumours and panic.
Early release measures
Countries in Southasia, such as India, Afghanistan and Nepal have already taken action to release prisoners to avoid the spread of COVID-19. Likewise, in Sri Lanka, various categories of prisoners could be released. These include persons who have been refused bail for minor, bailable offences, those who have been given bail but cannot meet bail conditions, those who have been imprisoned for the non-payment of fines, and those who have only six months remaining of their sentence.
In 2018, those who were sentenced to less than two years constituted 92 percent of the prison population. There are also existing laws which can be used to facilitate earlier releases. According to the Community Based Corrections Act of 1999, the court may issue a community-based correction order to anyone charged with an offence with a sentence of less than two years, taking into account the nature and gravity of the offence, as well as other circumstances related to the commission of the offence. Hence, persons that meet the criteria in the Act could be released on community-based correction orders. The challenges likely to be faced in using this method of release is that the procedure to assess such persons' eligibility would be time consuming, particularly given the severe shortage of human resources faced by the Department of Community Corrections. Once again, this points to issues that were not addressed in the past, hampering measures to protect prisoners and avoid the spread of infection.
Those with serious and terminal illnesses could also be considered for early release, as there is legal provision for this as well. Similarly, the elderly – ie, persons over 65 – could be released. In the event the seriousness and nature of the offence doesn't allow release, special measures would have to be taken to ensure these prisoners are protected from exposure.
Another means through which persons could be released is by expediting the process of approving home leave (prisoners with sentences of less than 30 years are eligible if they've served a third of their sentence and those with sentences of more than 30 years must have completed ten years of their sentence) and release via the license board (where a minister may grant any prisoner license to be released for a portion of their period of imprisonment under the Prevention of Crimes Ordinance). Those being sent on home leave should be sent for extended periods, ie, for a minimum of two months, preferably three, to avoid them returning to prison and possibly being carriers of the infection.
Most importantly, in the interests of transparency and to prevent the process of early release from being abused, it is imperative that the evaluation of eligibility for release in the above-mentioned categories is done according to established objective criteria that is made publicly available.
On 25 March 2020, following the riot in Anuradhapura, it was reported that President Gotabaya Rajapaksa had appointed a committee to provide recommendations on the possibility of the early release of persons who had been imprisoned due to the inability to pay bail and for minor offences. While this is welcome, the process of early release should be transparent and implemented according to objective criteria which is made public. More importantly, following the crisis, prison reforms should become an area of priority, along with the related reform of the criminal-justice process.